Rai Bahadur Pt.
R.C. Kak,
Prime Minister Jammu & Kashmir
State
to Mirza Afzal Beg
Legal Document No
88
Letter No. 16-CC/46 D.O. Dated 12.2.46.
My dear Mr. Beg,
I write to acknowledge receipt of your demi-official letter No. 11-P/46,
dated 15th January 1946. The various matters you have raised are dealt
with in the following paragraphs which, I might mention, embody the views
I have expressed to you from time to time in regard to these matters.
1. Right to Vote in the Assembly. If a Minister has the right to express
and urge his point of view in the Council but if the decision of the majority
goes against him it naturally follows that he will accept and endorse the
policy of the Government of which he is a member. The amendment to situation
the Constitution Act quoted by you was made, as you knot, with the sole
object of meeting the situation arising out of the ruling given by the
President, Praja Sabha, to the effect that by virtue of your and Wazir
Gangaram's appointment as Ministers the elected seats in the Assembly held
by you had become vacated. The amendment preserved your status as non official
members of the Praja Sabha, but has no relation whatever to the question
of Ministers voting in the Sabha Sir B.N. Rau's opinion was that you and
Wazir Gangaram should be debarred from voting, but that opinion had no
sanction behind it, and hi practice would involve serious difficulties.
I am authorised to inform you that there was no question at any time of
the Ministers appointed by His Highness from amongst the members of the
Praja Sabha being given the option to vote in the Praja Sabha independently
of the decision of the Government and no such meaning can be read either
into His Highness's Message to the Praja Sabha dated 2nd October, 1944,
or into the amendment to Constitution Act referred to by you
2. With regard to the question of Secretariat as you are aware, for
the last several years, the Secretariats have been of a composite character
and each Minister has to deal with several Secretaries and Secretariats.
So long as the, number of Ministers coincided with that of Secretaries,
though an anomalous one, could continue without much difficulty, but with
the increase in the number of Ministers its inherent defects became immediately
noticeable. When you mentioned the matter to me, I explained how undesirable
it would be to create and retrench Secretariats as circumstances necessitated
increase or decrease in the number of Ministers, I added that in British
Indian Provinces and in certain Indian States, Secretariats remained constant
while the number of the Ministers, varied as circumstances demanded. When
the Secretariats were reorganised in 1939 and the posts of Secretaries
were made tenure appointments, the allocation of departments among the
Secretariats no longer continued to be identical with the portfolios the
Ministers who controlled them. In the circumstances the logical course
would have been to combine the Secretariats for purposes of administration
though they might continue to function under the Ministers in respect of
the performance of their appointed duties. I however offered, as a purely
temporary measure, to place under you the Public Works Secretariat with
either the Secretary or the Assistant Secretary. You preferred the Secretary
for all purposes in the same manner as other Secretariats where under other
Ministers. You accepted the suggestion but pressed that the establishment
in other Secretariats dealing with the departments under you should also
be transferred to this Secretariat. This however, would have meant going
back to the system which had been discarded in 1939 after detailed consideration,
and it was therefore, impracticable when the order was drafted, to implement
the suggestion made by me. The Chief Secretary Informed me that he understood
that the arrangement would not be acceptable to you. The only solution,
therefore, was the logical one, namely that of placing all Secretariats
for purposes of administration under one authority. A proposal divas accordingly
submitted to Council and received the support of the other Ministers. Orders
have since been passed and your position is exactly that of your colleagues
with reference to the Secretariat. Moreover you have a Personal Assistant
which the other three Ministers have not.
3. Delegation of powers under the Municipal Act. The reason why this
case has not been put up to the Council is that the Law Department has
not accepted your view that powers can be delegated to you as proposed,
under the existing provisions of the Act. I have, however, asked the Chief
Secretary to submit the case to Council where your proposal and the objection
of the Law Department can be discussed. In any case it appears to me, there
should be no difficulty in Disposing of these cases in accordance with
the existing provisions of the Municipal Act even if it is assumed, as
you assume, that your predecessor exercised powers which he was not Entitled
to exercise under the law. It is conceivable that these Provisions lay
down a procedure entailing unnecessary work
On the Council but that cannot be a sufficient reason for holding up
disposal. As a matter of fact, when in Srinagar, you spoke to me on this
subject you remarked that you would be compelled to send the cases to Council,
I replied that it was open to you to do so. As there is an Ad Hoc Committee
considering further amendments to the Municipal Act, may I suggest that
this Committee might consider any amendments. in regard to the sections
referred to in your letter, should the Council find on consideration, that
the Law Department's. Objection to your proposal is insuperable.
4. Enforcement of Rule 50 in certain parts of the State Magistrates
and Police Officers powers which are vested in them by statute, rule or
orders of Government. The purpose for which they are armed with these powers
is that they should be able to discharge their primary responsibility,
viz. ensuring the maintenance of law and order and preventing breaches
of peace, without being obliged in each case and on each occasion to ask
for instructions. In this behalf there is no difference in law and practice
as between this state and anywhere else. So far as the question of securing
information with regard to happenings in the State is concerned, you get
information like other Ministers, since like them you are supplied with
police diaries every day. In addition, whenever you have sought for information
or explanation from me, I have readily furnished it to you to the best
of my knowledge. It is not possible to lay down that the Magistrates and
the Police must refrain from taking action in the discharge of their responsibility
without previous approval of higher authorities. In fact, though, Law and
Order is within my individual sphere of responsibility, even I often receive
information only after action has been taken by the Magistrates and the
police.
So far as the enforcement of emergency laws is concerned' discretion
to enforce them rests with the District Magistrates. It is only when they
find that the ordinary processes of law are inadequate to deal with the
actual outbreak of disorder in a particular place, that they have recourse
to emergency measures. This applies to your Constituency as to other places,
and this State is not unique in the application of such measures in given
circumstances. Even where such laws are in force meetings can be held and
have been held in some you yourself have participated and processions taken
out with the permission, of the competent Magistrate, who when considering
request for such permission has to satisfy himself that there will be no
breach of the peace if the permission asked for is granted.
5. Distribution of controlled commodities....You have made passing reference
to the question of the distribution of controlled commodities. There have
been and I dare say may still be shortcomings in distribution but things
have improved considerably in recent months. Any suggestions received from
any quarter regarding improvement of control arrangements have been practicable.
Any suggestion you might make which is generally acceptable and will work
in practice will have my full support.
6. You have referred to his Highness massage to the Praja Sabha dated
2nd October, 1944. It must be the endeavour of all of us to ensure that
the intention underlying the message should attain fulfillment. To achieve
this object we have all to work together and it is hardly necessary form.
to add that the measure of our success will be in proportion to the spirit
of goodwill and accommodation we bring to the common task.
Yours sincerely,
Sd /- R. C. Kak
The Hon'ble Mirza M.A.Beg,
Public Works Minister,
Jammu.
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